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TMI Blog2015 (12) TMI 1909X X X X Extracts X X X X X X X X Extracts X X X X ..... he legal position on the evidentiary value of statements recorded during the survey, the Hon'ble Courts have held that these statements have no evidentiary value. Even otherwise the purchasers have filed affidavits which stand uncontroverted till date. The assessee produced all evidences in support of their claim. The A.O. could not dislodge their claim with evidence. In our opinion the A.O. could not prove that there was cash payment for the purchase of the shares. When an allegation is made by the Revenue that the assessee has earned certain income, the burden is on the Revenue to prove the same. In the case on hand the facts and evidences demonstrate that the Revenue has not discharged this burden of proof that lay on it. Thus we have no other alternative but to uphold the factual finding as well as the order of the First Appellate Authority and dismiss this appeal of the Revenue. Reassessment order passed by non jurisdictional officer - ITO, ward 34(4) furnished a copy of the reasons recorded to the assessee on 7.9.2007. ACIT, Circle 34(1), New Delhi has admittedly not recorded that he had reasons to believe that income chargeable to tax of the assessee has escaped assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent assessee himself had furnished affidavits to Jamil A Khan in support of his case. The observations of the CIT (A) as also of the Tribunal that despite the request of the respondent assessee, the A.O. had not provided opportunity of cross examining Jamil A Khan, are contrary to the record. We are therefore, of the opinion that the answer to the question framed has to be in favour of the revenue and against the respondent assessee. 9. It must also be mentioned that in the conclusions arrived at by the Tribunal, there is reference to the return filed by Jamil A Khan. But, that reference is to the original return filed by Jamil A Khan and not to the revised return filed by Jamil A Khan. The Tribunal had completely overlooked the fact that Jamil A Khan had filed a revised return after he had made a surrender of Rs. 10 crore during the survey operation. In that return an amount of Rs. 6.29 crores has been shown as the cash component of the purchase of shares of R.S. Builtwell Pvt .Ltd. from the assessee and his relatives. That aspect of the matter has been ignored by the Tribunal. Consequently, having answered the question in favour of the revenue, we set aside the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s surrendered as additional income. He referred to page 4 para 3.2 of the order of the Ld.CIT (A) and disputed the findings therein. He referred to the conclusions drawn by the Hon'ble Delhi High Court in its judgement and submitted that the assessee had never requested for an opportunity to cross examine Jamil A Khan that on the face of an affidavit having been furnished by Jamil A Khan, the question of adverse inference on the ground that no proper opportunity was given for cross examining Jamil A Khan does not arise. He further submitted that Jamil A Khan had filed a revised return wherein he made a surrender of Rs. 10 crores during survey operations and that he declared an amount of Rs. 6.29 crores as cash on purchase of shares of R.S. Builtwell Pvt. Ltd. from the assessee. He relied on the order of the AO and prayed that the same may be upheld. 5.1. The Ld. Counsel for the assessee Mr. Amit Goel on the other hand drew the attention of the Bench to a letter dt. 29.12.2008 filed by the assessee before the AO running into 8 pages and which is placed at pages 24 to 31 of the paper book. He drew the attention of the Bench to para 8 page 6 wherein it was stated as follows : "Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he following case laws. (i) Kisnichand Chellaram vs. CIT (1980) 125 ITR 713 (S.C.) (ii) Laxmnbhai S Patel vs. CIT(2008) 174 Taxman 206 (Guj.) (iii) CIT vs. Rajesh Kumar (2008) 172 Taxman 74 (Del.) (iv) CIT vs. Pradeep Kumar Gupta(2008) 303 ITR 95 (Del.) 6. The Ld.Counsel for the assessee relied on the order of the Ld.CIT(A), the written submissions made by the Ld.CIT (A) as well as that made before the Tribunal which is at pages A to G of the paper book. 6.1. In reply the Ld.DR submitted that he would produce the revised return of income filed by Mr. Mr.Jamil A Khan in support of his contentions that the transaction with the assessee was declared in such return of income. The Bench granted 15 days time to the Revenue to produce the revised return filed by Mr. Jamil A Khan as the assessee is strongly disputing this fact so as to verify the claim of the revenue that the transaction in relation to the assessee has been a subject matter of disclosure in that revised return of income. We have waited for two months and also enquired from the Ld.D.R. The alleged revised return of income filed by Mr.Jamil A Khan is not produced before us by the Revenue till date. In any event in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Products Ltd. vs ITA (2008) 22 SOT 429 (Mum) it was held that section 133A(3)(iii) authorities authority to record statement of any person which may be useful for or relevant to any proceeding under the Act. However, the officer is not authorize to record .statement on oath and hence statement taken during the course of survey has no evidentiary value. e). The loose papers on the basis of which the Assessing Officer has made the addition bears no signature of the appellant. There is mention about total payment of ~ 12.29 Cr. On these pages, out of which Rs. 6.29 Cr. is stated to be in cash and balance Rs. 6.00 Cr. by cheques. The A.O. has stated that the papers found during survey are a composite document in which two different modes of payment are given and payment made through cheques are verifiable. The remarks of the A.O. are erroneous and do not fit into the scheme of things as has been made out by him. For instance in Para "A" there is a reference to payment of Rs. 1, 00, 00, 000/- on 05.12.2005 (Rs.55, 00, 000/- in cheque and Rs. 45, 00, 000/- in cash). The assessee has not received any cheque of RS.5 Lacs. Similarly in Para "B", there is mention about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not discharged this burden of proof that lay on it. Thus we have no other alternative but to uphold the factual finding as well as the order of the First Appellate Authority and dismiss this appeal of the Revenue. 8. In the result Revenue's appeal 1603/Del/2010 for the A.Y. 2006-07 is dismissed. 9. ITA 1211/Del/11 is filed by the Revenue and is directed against the order of the Ld.CIT(A)-XXVII Delhi dt. 27th October, 2010 for the A.Y. 2006- 07. The Cross Objection 105/Del/11 is filed by the assessee against the appeal by the Revenue in ITA no. 1211/Del/11 for the A.Y. 2006-07. 10. We first take up the Cross Objection 105/Del/2011 (in ITA 1211/Del/11) filed by the assessee. The grounds of the C.O. read as follows. "1. On the facts and in the circumstances of the case and in law, the Ld.CIT (A) erred in confirming the action of Ld.AO of issuing notice u/s 148 of the Act. The Ld.CIT (A) should have held that notice u/s 148 of the Act was bad in law and reassessment made u/s 147 of the Act was liable to be quashed. 11. The Ld.Counsel for the assessee submitted that the notice u/s 148 of the Act in this case is issued without jurisdiction. He submits that reasons for reopening ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corded that he had reasons to believe that income chargeable to tax of the assessee has escaped assessment. He continued reassessment proceedings initiated by the ITO, Ward 34(4) of the Act without independently recording reasons for reeopening or issuing a fresh notice u/s 148 of the Act. There is no order u/s 127 of the Act transferring the jurisdiction of the ccase from ITO, Ward 34(4) to ACIT, Ward 34(1). Thus this order of reassessment passed by the ACIT u/s 34(1) of the Act is without jurisdiction and hence is bad in law. 13.1. The Delhi E Bench of the Tribunal in ITA 2358/Del/12 in the case of Mukesh Kumar vs. ITO vide order dt. 12.6.2015 at para 5 held as follows. "5. We perused the relevant material on record. In the present case the notice u/s ;148 was issued on 2nd March, 2009 by ITO, Ward 26(4) New Delhi. After receipt of notice the appellant had responded through its authorized representative and submitted the copy of the return filed under provisions of S.139 of the Act. After noticing that the jurisdiction over the appellant is vested with ITO, Ward 26(3), the file was transferred by ITO Ward 26(4) to ITO Ward 26(3). The ITO Ward 26(3), New Delhi had processed wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessment by its letter dt. 9th Agusut, 2006. In the remand report dated 20th December, 2010 the AO quoted a paragraph from the order sheet which stated that the afore mentioned letter dt. 9th August, 2006 had been handed over to the AO and that the AO had sought some more information which the assessee had not filed. The CIT (A) accordingly held that by stating that no objections had been filed, the AO had 'very conveniently disregarded the guidelines' laid down by the Supreme Court in GKN Driveshafts (India) Ltd. vs. ITO (2003) 259 ITR 19 (SC). The CIT(A), therefore, agreed with the assessee that since the procedure laid down by the SC in the afore mentioned decision was mandatory, the AO had in fact not disposed of the objections by a speaking order. Neverhteless, he CIT (A) held that the said defect 'does not make the assessment order illegal and hence it cannot be quashed. It is a technical mistake which is curable.' 6. The Court is of the considered view that after having correctly understood the decision of the Supreme Court in GKN Driveshafts (India) Ltd. (supra) as mandatorily requiring the AO to comply with the procedure laid down therein and to dispose of the obje ..... X X X X Extracts X X X X X X X X Extracts X X X X
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